1 A joint application may be made to review the commercial/industrial special rate declared by Alpine Shire Council in respect of multiple properties where there is no conflict of issue between the joint applicants.

2 A single fee is payable in respect of the joint application.

1 A request has been made for the Tribunal to depart from its normal practice of requiring a separate application fee in respect of each property where there is an application for review against a special rate or charge. I have reviewed the basis upon which the Tribunal's practice in this respect is found and conclude that there will be circumstances where it is appropriate for a joint application to be made against a special rate or charge and for only one fee to be payable in respect of that joint application.

2 In this proceeding, three separate applications for review have been lodged with the Tribunal and separate fees have been paid by each of the applicants, Ray Dixon, David Kennedy and Wayne Phillips. Each application is made under section 185 of the Local Government Act 1989 against declaration of a special rate in respect of commercial/industrial land throughout Alpine Shire. The special rate has been declared for the purpose of defraying any expenses in relation to promotion of economic development and tourism, which the Alpine Shire Council considers will be a special benefit to those required to pay the special rate. The group for which the special rate is so declared is all commercial/industrial operators and the land in relation to which the special rate is declared is land primarily adopted for use as commercial or industrial purposes throughout Alpine Shire. It will apply to over 500 properties within the municipality.

3 The specific grounds relied upon by each of the three applicants are as follows:

•

Section 185(2)(b)(i) - the works and projects for the purposes of which the special rate was imposed will not provide a special benefit.

•

Section 185(2)(b0(ii) - the basis of distribution of the rate amongst those persons who are liable to pay is unreasonable.

•

Section 185(AA) - the decision to impose the special rate was unreasonable and (therefore) invalid.

4 Whilst each of the applications was accompanied by a separate fee, the applicants have requested that Victorian Civil and Administrative Tribunal consider the possibility of allowing this matter to proceed as one group application with one fee. They state:

If a group application were to be allowed there would obviously be quite a number (of) other affected persons wishing to join in and, in that event, we would seek to have them included.

If though the ruling remains that each person must make separate application and pay a separate fee then we would wish to proceed with the three individual applications lodged herein.

5 The ruling that the applicants refer to is that by Judge Fagan in Armstrong and Ors v City of Greater Geelong[1]. In Armstrong's case, a special charge for drainage works pursuant to the Local Government Act 1989 was levied on 365 owners of separate properties. They lodged one appeal, the grounds of which related to no special benefit and the works being unnecessary, unreasonable, excessive, insufficient, unsuitable and costly having regard to the locality or environment. The appellants argued that as it was one appeal, it attracted payment of only one fee to the Tribunal.

6 Judge Fagan, then President of the Administrative Appeals Tribunal, directed that each appellant lodge a separate fee with the Tribunal. He held that:

1. "Application" in regulation 5(4) of the Administrative Appeals Tribunal (Fees) Regulations was unambiguous, and included each of the separate sets of proceedings brought by each of the appellants.

2. Each ground of appeal required separate consideration for each property listed in the appeal, and each application did not raise the same question of law.

3. Concerning the argument that public policy supported treating the matter as one application (the public being saved costs by a joint hearing) appeals by multiple owners of the same lot may invite different treatment to single owners of multiple lots.[2]

7 Since Armstrong's case was decided, the Tribunal[3] has taken the view that applications for review in relation to special rate or special charge schemes under section 185 of the Local Government Act 1989 require a separate application with a separate fee in relation to each property.

8 Mr Ray Dixon, on behalf of the three applicants in the present proceeding, has applied to the Tribunal to lodge a group application in respect of the commercial and industrial special rate declared by Alpine Shire Council. His application is supported by a detailed submission that identifies substantial differences in circumstances and merits of the Armstrong case compared to the circumstances under which the current applications are made. Whereas the Armstrong decision refers mainly to the physical nature of the proposed works to be funded by the special rate (drainage works) and how those works may sit with the individual characteristics of each allotment, he submitted that the Alpine Special Rate involves the funding of the promotion of economic development and tourism. These works are far less tangible and are of such a general nature that all appeals against the decision would be almost identical.

9 I have reviewed the decision by Judge Fagan in Armstrong and Ors v City of Greater Geelong and consider that the principle it establishes is no longer justified as a general principle applicable to all cases. There will remain situations where applications to review a special rate or special charge scheme will require a separate application with a separate fee in relation to each property in circumstances where the individual characteristics of properties are different and where different outcomes may arise. But if persons intend to rely upon the same grounds and there is no conflict in terms of identity of issue between the persons who are to be the joint applicants, it will be appropriate for a number of persons to group together to lodge a joint application.

10 The reasons for this change in approach are to be found in the different legislative provisions which apply to the Victorian Civil and Administrative Tribunal.

11 The Victorian Civil and Administrative Tribunal Act 1998 allows two or more persons entitled to make an application to the Tribunal to make a joint application.[4] There was no equivalent provision in the Administrative Appeals Tribunal Act 1984.

12 Section 68 of the Victorian Civil and Administrative Tribunal Act deals with application fees. An applicant must pay the prescribed fee (if any) for the application.[5] If a joint application is made, only one prescribed fee must be paid in respect of that joint application. The principal registrar may determine that a joint application should be treated as though it is a number of separate applications. In this case, each applicant will have to pay the application fee individually.[6]

13 Judge Fagan's decision in Armstrong's case was based on Regulation 5(4) of the Administrative Appeals Tribunal (Fees) Regulations 1993, which provided that a fee is payable in respect of an application subject to various qualifications and exemptions. According to Judge Fagan:

The question of whether one or several individual fees is payable depends on the answer to the question in the particular circumstances that have arisen as to whether or not the proceedings on foot constitute "an application" within the meaning of Regulation 5(4) or a number of several and separate applications.[7]

14 Judge Fagan considered the nature of the appellants and their properties, the nature of the special charge and the grounds of appeal. In his view, those grounds of appeal require essentially separate consideration of each relevant allotment. In reaching this conclusion, he said:

... In my opinion, the matter being commenced by one document setting up as I hold it does a number of different applications for review, falls in no different position from that which would be the case if each owner in relation to each block commenced his or her application to review by separate document. In my opinion, the merits of these applications require separate consideration and in relation to each lot constitute separate applications by the relevant owners. It is simply a case, in my opinion, of the applicants seeking a simultaneous hearing of each separate application. In my opinion it cannot be said that each of these applications raise the same question of law, each application needs to be considered on its own merits and inevitably will not involve precisely the same question of law.[8]

15 I consider that the findings in Armstrong's case can be distinguished from the present proceeding not only on the basis that the legislation has changed but that the nature of the grounds relied upon by each of the applicants (and presumably other applicants who wish to make a joint application) are the same grounds and there is no conflict between the issues each person wants to raise or the outcome they want. In these circumstances, I consider it is appropriate for people to make a joint application. The situation will be different in the event that applicants to a joint application intend to rely upon different grounds in support of their application or if there is likely to be some conflict between the joint applicants. In such circumstances, whilst a joint application may be made, the principal registrar is likely to determine that separate fees are payable for the reasons relied upon in Armstrong's case. I consider these principles are applicable to all applications made to the Tribunal.

16 In summary therefore, I do not consider there is any justification for the assumption that all applications for review of special rate or special charge schemes involving different properties must be considered separately on their own merits and will never raise common grounds or common issues of law. This will need to be determined on the circumstances of each case in the event that a joint application is made.

[1] (1995) 14 AATR 347

[2] See (1995) 14 AATR 347 at 347

[3] The Administrative Appeals Tribunal and its successor, the Victorian Civil and Administrative Tribunal

[4] Section 67(3) of the Victorian Civil and Administrative Tribunal Act 1998

[5] Section 68(1) of the Victorian Civil and Administrative Tribunal Act 1998

[6] Section 68(2) of the Victorian Civil and Administrative Tribunal Act 1998

[7] (1995) 14 AATR 347 at 348

[8] (1995) 14 AATR 347 at 351